“Given the imminent effective date of New York City’s Fair Chance Act, employers may be wondering what they need to do to comply with the law. As many employers are aware, effective October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law to prohibit most employers from inquiring about criminal history until after a conditional offer of employment is extended. (Some employers may fall into the exceptions of this law.) The law also imposes upon employers the obligation to provide applicants with a copy of the relevant inquiry (e.g. the consumer report) and the company’s analysis under Article 23-A of the New York Corrections Law (in a form provided by the New York City Commission on Human Rights (“NYCCHR”)). On Friday, October 23, 2015, the NYCCHR released its Fair Chance Act Notice form, and is expected to release its enforcement guidance imminently. In the meantime, we recommend employers consider the following:
- Review all pre-employment forms. Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no reference to the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
- Train hiring managers. Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment. If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
- Revise the adverse action protocol. The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
- provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
- conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
- keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.
The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR.
- Consider best practices for direct inquiries to the applicant. Many employers may still wish to ask the applicant personally whether he or she has a criminal history. Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider. Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
- Review FCRA disclosure forms. Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report. And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.”
Originally posted by Lexology. Full article at http://www.lexology.com/library/detail.aspx?g=79e01e92-5fd0-4607-9728-fb8575f23655
“In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy starting January 1, 2016. AB 465 would create a new statute that prohibits employers from requiring a candidate to “waive any legal right, penalty, remedy, forum, or procedure for a violation of [the Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner… or any court or other governmental entity.” The section explicitly covers “an agreement to accept private arbitration.” The bill makes it unlawful to threaten, or retaliate or discriminate against, a person who refuses such a waiver. An employee may recover reasonable attorney’s fees incurred in enforcing rights under the new statute.
Even if the bill becomes law, certain forms of pre-employment arbitration agreements would remain enforceable, even if they cover Labor Code violations. For instance, those agreements that are knowing and truly voluntary—i.e., not made as a condition of employment—would be valid, but the employer would have the burden of proving these facts if challenged. Further, the new statute would not apply to persons registered with a self-regulatory organization under the Securities Exchange Act of 1934 or employees represented by counsel in negotiating the agreement.
AB 465 is principally backed by organized labor, with the California Labor Federation, AFL-CIO sponsoring the bill. A lobbyist for the federation cited an uptick in the instances of low-wage workers being unable to recover unpaid wages before the California Labor Commissioner due to an arbitration agreement they did not understand or know they signed. The bill is opposed by many groups, including the Civil Justice Association of California and the California Chamber of Commerce. The chamber has identified AB 465 as one of the 2015 Job Killers, citing the increased burden on the judicial system and noting likely preemption by the Federal Arbitration Act.
If AB 465 becomes law, the long-term legal impact is unclear. Not only will it prohibit pre-employment, mandatory agreements to arbitrate Labor Code violations, but it may also reach class action waivers, which the California Supreme Court recently upheld in the employment context. The substantive reach of the prohibition is also unclear, expressly covering a “legal right, penalty, forum, or procedure” for a Labor Code violation, but remaining silent on other employment-related statutes such as the Fair Employment and Housing Act (codified in the Government Code). Moreover, the statute will almost certainly be challenged under the Federal Arbitration Act, which reflects a liberal policy favoring arbitration enforceability and pre-empts state rules that disfavor arbitration. The ambiguity in breadth and pre-emption uncertainty leave employers in an unenviable position if the bill becomes law.
AB 465 (and the other employment-related bills described below) remain on Governor Brown’s desk for consideration, and we will continue to monitor and report on developments.”
Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/california-legislature-acts-to-outlaw-73929/
“BMW Manufacturing Co. L.L.C. will pay $1.6 million to settle a U.S. Equal Employment Opportunity Commission lawsuit that charged it was liable for race discrimination in connection with its former criminal background checks policy, which allegedly disproportionately affected African-Americans, the agency said Tuesday.
The 2013 lawsuit filed in U.S. District Court in Spartanburg, North Carolina, alleged that when Spartanburg-based BMW switched contractors handling the company’s logistics at its production facility there in 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW, the EEOC said in a statement.
At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony, the EEOC said.
According to the complaint, after the criminal background checks were performed, BMW learned that about 100 incumbent logistics workers at the facility, 80% of whom were black, were disqualified from employment. The EEOC lawsuit sought relief for 56 black employees who were discharged.
Under terms of the settlement, in addition to paying $1.6 million to resolve the litigation, BMW will offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.
“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.
BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background
checks is to ensure the safety and well-being of all who work at the BMW plant site.
“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.
The BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.” “
Originally posted by BusinessInsurance.com full article at http://www.businessinsurance.com/article/20150908/NEWS06/150909821
“The background-check service that ride-hailing company Uber uses to screen potential drivers did not flag the criminal records of 25 drivers who gave thousands of rides to customers in Los Angeles and San Francisco, prosecutors said Wednesday.
The findings were made public in an amendment to a consumer protection lawsuit filed last year by the district attorneys for Los Angeles and San Francisco. The suit alleges that Uber has misled customers about the safety of the app-based ride service, including how they screen potential drivers.
In the amended 62-page civil complaint, prosecutors detailed the criminal histories of 25 people who gave rides to passengers in Los Angeles and San Francisco in the last two years.
“I support technological innovation,” San Francisco Dist. Atty. George Gascón said in a prepared statement. “Innovation, however, does not give companies a license to mislead consumers about issues affecting their safety.”
The Times reported this month that four Uber drivers cited at Los Angeles International Airport had criminal records that would bar them from driving a taxi in Los Angeles.
Whether ride-hail drivers should be held to the same background-check standards as taxi drivers has been the subject of hours of testimony at Los Angeles City Hall, as lawmakers prepare to vote on a permit process that would allow Uber and its main competitor, Lyft, to pick up passengers at LAX.
Prospective Uber drivers are not required by state law to submit fingerprints as part of their background checks. The company says its background-check service identifies all criminal convictions in the last seven years.
By contrast, the Los Angeles Department of Transportation runs the prints of potential taxi drivers through federal criminal databases.
Uber and Lyft use services that can process screenings within days. They have both argued that using fingerprint checks would be redundant.
In a prepared statement, Uber spokeswoman Eva Behrend said that no background check is “100% foolproof.” Running fingerprints through state and federal databases can flag the criminal records of people who have been arrested but not convicted, “which can discriminate against minorities,” she said.
According to the amended lawsuit complaint, one driver was convicted of second-degree murder in Los Angeles and spent 26 years in prison. He gave a different name when he applied to drive for Uber, and a background report said he had no known aliases and no criminal history, the complaint said. The driver gave 1,168 rides over seven months, according to the prosecutors’ court filing.
Using fingerprints and checking federal databases would have identified the man’s criminal history, prosecutors said.
Prosecutors also said they found three unlicensed drivers who used someone else’s account to drive for Uber.
Five drivers had convictions for driving under the influence in the last seven years, the complaint said, and some still drive for Uber. The company has said it bars applicants with convictions for DUI in the preceding seven years.
Several drivers were convicted of fraud, including one driver convicted in 2010 of 29 felony counts of theft, grand theft, filing false or fraudulent real estate deeds, and money laundering, according to the complaint.”
“Addressing an issue of first impression, the federal Third Circuit Court of Appeals (which covers Delaware, New Jersey and Pennsylvania), recently held that an employee’s suspension with pay is not an adverse employment action for purposes of Title VII. In doing so, the Third Circuit has joined several of its sister Circuits across the country, including the Second, Fourth, Fifth, Sixth and Eighth Circuits.
The case, Jones v. Southeastern Pennsylvania Transportation Authorityinvolved an employee who was suspended with pay while her employer investigated allegations that she had submitted fraudulent timesheets. She didn’t suffer any loss of income or compensation. She was off workwith pay. Nevertheless, the employee sued her employer claiming, among other things, sex discrimination and sexual harassment.
In evaluating whether or not the paid suspension could be considered discriminatory, the Third Circuit observed that Title VII prohibits discrimination with respect to decisions concerning hiring, firing, compensation and other terms and conditions of employment. Because suspending an employee with pay does not neatly fall within these categories, the court concluded that such a paid suspension could not be an adverse employment action for Title VII purposes. The lack of an adverse employment action similarly negated the plaintiff’s sexual harassment claim.
All in all, the decision is good for employers and ensures that those who do go the extra mile to suspend with pay do not get burned for doing so. Although the decision does not guarantee that an employee will not sue over a paid suspension, it does effectively curtail a Title VII claim in this context – and particularly in the Circuits that have adopted this rule. And doing so makes perfect sense: it smacks of unfairness that a company which pays an employee on leave might then be forced to also pay to fend off a discrimination or harassment claim filed by the very same employee who was on the paid suspension.
Practically, what does this case mean for employers? They have a choice to make: (a) pay the suspended employee and eliminate the potential for a discrimination claim; or (b) choose not to pay the suspended employee and accept the risk that the employee – and a court – would find the lack of payment as an adverse employment action.
Whatever choice employers make, they also must make certain they handle similar decisions uniformly and not in a way that would be perceived as discriminatory: selectively suspending some employees with pay but not others (i.e. those who are not be in protected classes) would only create a bigger problem. As with everything in the employment arena, employers constantly must evaluate the risks and benefits of their individual actions, while simultaneously keeping the big picture in mind.”
Originally posted by The National Law Review. Article can be found at http://www.natlawreview.com/article/not-all-good-deeds-are-punished-paid-suspension-not-adverse-employment-action-title-
“An Indianapolis trucking firm has agreed to pay $200,000 to settle an Equal Employment Opportunity Commission disability discrimination case, in which it was charged with requiring pre-employment medical exams.
The EEOC said Tuesday that Indianapolis-based Celadon Trucking Services Inc. violated the Americans with Disabilities Act by subjecting applicants to medical exams before making a conditional offer of employment, and discriminating against applicants based on disability or perceived disability.
The agency said that on June 30, the U.S. District Court in Indianapolis ruled that the company violated the ADA by conducting unlawful medical inquires and exams of applicants for over-the-road truck driving positions, and that in two cases, it unlawfully dismissed two class members from a driver orientation program because of their disabilities, in violation of the ADA.
In addition to paying $200,000 in damages to 23 former Celadon applicants, the settlement requires the company to train its management employees on disability discrimination, among other provisions.
“The law is clear: Celadon cannot subject applicant drivers to disability-related inquiries and medical examinations without first extending to these applicants a conditional job offer,” said Laurie A. Young, regional attorney of the EEOC’s Indianapolis district office, in a statement.
“Celadon’s policies must conform to the requirements of the ADA. We are satisfied that this settlement serves the public interest, and we are confident that the relief obtained will prevent the recurrence of this type of discrimination,” Ms. Young said.
Celadon’s attorney could not immediately be reached for comment.
Earlier this year, an Arkansas trucking firm was ordered to pay $477,399 in an EEOC disability discrimination lawsuit in which it was charged with subjecting its truck-driver workforce to overly broad medical inquiries.”
Originally posted by Business Insurance. Article can be found at http://www.businessinsurance.com/article/20150804/NEWS06/150809951/trucking-firm-to-pay-up-in-eeoc-pre-employment-exam-case?tags=%7C338%7C70%7C75%7C80%7C83%7C302
I. Procedural Background and Party Positions
“After investigating a gender discrimination claim against Mach Mining, the EEOC determined that reasonable cause existed to believe that the company had engaged in unlawful hiring practices. The EEOC sent a letter inviting Mach Mining and the claimant to participate in informal conciliation proceedings. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had failed – pursuant to the statutory mandate that conciliation discussions remain private, the evidence record did not reflect what negotiations, if any, took place in the interim. The EEOC then sued Mach Mining in federal court.
In its responsive pleadings, Mach Mining asserted, as an affirmative defense, that the EEOC had not attempted to conciliate in good faith. The EEOC responded by arguing: (1) that conciliation efforts were not subject to judicial review; and (2) that the two letters sent to Mach Mining provided sufficient proof that the EEOC had fulfilled its statutory duty to conciliate. The district court agreed with Mach Mining, holding that the adequacy of the EEOC’s conciliation efforts was subject to judicial review. The EEOC appealed, and the Seventh Circuit reversed the District Court, finding that the EEOC’s statutory obligation to conciliate was unreviewable. Mach Mining then sought review in the United States Supreme Court, andcertiorari was granted.
The parties presented unwavering and starkly opposite arguments to the Supreme Court. The EEOC’s position was that Title VII allotted complete discretion to the Commission; therefore, its conciliation efforts were not subject to judicial review. The only concession made by the EEOC was that, if the Court were to deem the conciliation process reviewable, then the EEOC’s letters to Mach Mining provide sufficient evidence of the Commission’s compliance with the statutory mandate to conciliate – as long as the EEOC issues two letters, courts have no authority to consider any other evidence regarding the conciliation process. Mach Mining, on the other hand, argued that courts should be able to employ the NLRA’s standard of “good-faith bargaining” with regard to the EEOC’s conciliation efforts, which would require courts to delve deeply into the facts surrounding each and every conciliation process.
II. The Opinion
In a unanimous opinion, authored by Justice Kagan, the Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But [the Court found] that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1649 (2015). Sounds good in theory, right? To unpack this holding, one must look at each of the issues addressed by the Court and, more importantly, the issues that were not addressed.
First, the Court had to dispose of the EEOC’s argument, and Seventh Circuit’s holding, that the EEOC’s conciliation efforts were not judicially reviewable. To do so, the Court cited case law precedent that applies a “strong presumption” favoring judicial review of administrative action. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). The Court reasoned that, because the EEOC’s participation in conciliation efforts is a mandatory prerequisite to filing a lawsuit under Title VII, courts must be able to exercise some oversight in the process. As the Court stated:
Yes, [Title VII] provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. But no, Congress has not left everything to the Commission.
Mach Mining, 135 S.Ct. at 1652 (emphasis in original) (citations omitted). The Court’s view was predicated on the idea of culpability:
Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.
Id. at 1652-53.
Having determined that the EEOC’s conciliation efforts are subject to judicial review, what, then, is the scope of such review? The Court denied each side’s proposed standard. First, the Court denied the EEOC’s argument for “the most minimalist form of review imaginable,” reasoning that “a court needs more than the two bookend letters the Government proffers” in order to verify the Commission’s compliance with Title VII. Id. at 1653. Likewise, the Court rejected Mach Mining’s proposed framework, similar to that used in the NLRA, because the NLRA and Title VII serve different purposes. While Title VII is focused strictly on results – to eliminate unlawful discrimination in the workplace – the NLRA aims to create a “sphere of bargaining” in which both sides are obligated to bargain fairly. Id. at 1654. To treat Title VII conciliation like labor negotiations, the Court held, would be to adopt rules that “do not properly apply to a law that treats the conciliation process not as end in itself, but only as a tool to redress workplace discrimination.”Id. The Court additionally noted that Mach Mining’s proposed scope of judicial review would undermine the EEOC’s discretion and confidentiality mandated by Title VII. See id. at 1655.
The Court held that the appropriate scope of review enforces Title VII’s requirements, “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further.” Id. at 1653. As the Court explains:
[Title VII] demands…that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an ‘endeavor’ to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute.
Id. at 1655-56. To show, then, that the EEOC did not comply with Title VII during conciliation, an employer must provide credible evidence (typically by sworn affidavit) indicating that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim,” which would then allow a court to conduct the necessary factual inquiry to decide the dispute.
III. Lingering Issues
So, the Court has defined Title VII conciliation as a tool to remedy workplace discrimination (nothing new there). What is interesting, however, is that the Court inferentially mandated that the remedy of the allegedly discriminatory practice be the beacon of conciliation. How does that work? Let’s say, for example, that Mach Mining had said during conciliation, “Okay, EEOC, we know there is a problem. We will hire the claimant, pay her the wages she would have earned up to her first day of work and adjust our hiring practices and facilities accordingly.” By the Court’s ruling, this would seem to be a sufficient offer to remedy the alleged discrimination. But, what if the EEOC rejects this proposal? What if the EEOC wants to make an example out of Mach Mining? Can they do that? Sure they can. The Court does not disturb the extensive discretion allotted to the EEOC in determining a satisfactory settlement or in determining its motive for accepting or rejecting settlement. As you can see, although the Court’s holding has established the allowance of judicial review, it does not allow courts to interpret the rationality of the EEOC’s positions. Courts may only determine whether the Commission went through the proper procedures and put the employer on notice of the claim. For a results-oriented statute, as the Court described Title VII, this scope of judicial review does not seem to facilitate the results that Title VII theoretically endeavors to achieve. ”
Originally posted by The National Law Review. Article can be found at http://www.natlawreview.com/article/us-supreme-court-holds-eeoc-conciliation-efforts-are-subject-to-limited-judicial-rev
” Background checks by the Transportation Security Administration cleared 73 people for access to secure airport areas even though their names were on a federal database of possible terrorists, a senior official told a Senate committee Tuesday.
The latest security lapse came to light as John Roth, the inspector general at the Department of Homeland Security, delivered a scathing report on problems and blunders at the long-troubled agency.
They include inadequate baggage screening, hiring of convicted criminals, questionable spending, and narcotics smuggling and human trafficking by TSA employees.
“We remain deeply concerned about [the TSA’s] ability to execute its important mission,” Roth told the Senate Homeland Security and Governmental Affairs Committee.
The hearing was held a week after Jeh Johnson, secretary of Homeland Security, reassigned the acting administrator of the TSA in the wake of reports that auditors from Roth’s office had successfully slipped mock explosives and weapons past TSA checkpoints 67 out of 70 times.
The White House has nominated Peter V. Neffenger, vice commandant of the Coast Guard, to take the helm of the TSA. Neffenger is expected to win approval from the Senate committee after a confirmation hearing Wednesday.
In the latest case, Roth said, his investigators had found the names of 73 airport workers “with possible terrorism-related information” in a classified federal database that the TSA could not normally access.
“TSA acknowledged that these individuals were cleared for access to secure airport areas despite representing a potential security threat,” Roth testified.
Roth said the risk was discovered after he asked the National Counterterrorism Center to check more than 900,000 active aviation workers against the classified intelligence database called the Terrorist Identities Datamart Environment, or TIDE. It contains confirmed and unconfirmed information about people with potential terrorist links.
The search found 73 matches of people cleared for access to secure areas. Investigators immediately gave the TSA the names that raised concerns, Roth said. He did not say whether they included any TSA employees, when the discovery was made, or whether any of the people posed an actual threat.
The names of people who are hired by airlines and airport vendors are normally checked against a more narrow, unclassified database that is maintained by the FBI’s Terrorist Screening Center.
Last year, then-TSA head John Pistole sent a letter to the FBI asking that TSA background checks also include a search of the bigger, more inclusive database, Roth said. But the FBI and the intelligence community have not acted, he said.
“I can’t imagine the FBI would not have moved on this with the utmost haste,” Sen. Kelly Ayotte (R-N.H.) said at the hearing. “The bureaucracy can’t hold this up.”
The fact that 73 workers with potential links to terrorism had access to the secure areas of airports “really does give you pause,” Ayotte said, “because it really only takes one.”
Roth also repeatedly criticized the TSA’s use of PreCheck, which allows expedited screening of vetted passengers. He said the TSA allows expedited screening of nearly half the flying public, often by randomly pulling people out of line.
In one case, he said, a convicted felon who was “a former member of a domestic terrorist group” was granted expedited screening even though the traveler was “sufficiently notorious” that a TSA screener recognized him.
The screener “notified his supervisor, who directed him to take no further action and allow the traveler to proceed through the PreCheck lane,” Rush said. He did not identify the passenger. ”
Originally posted by The Los Angeles Times. Article can be found at http://www.latimes.com/nation/nationnow/la-na-tsa-security-lapse-20150609-story.html
“A divide may be forming between courts and the National Labor Relations Board over the “joint employer” ruling.
In a statement issued to The Daily Caller News Foundation Friday, the International Franchise Association argued, “A ruling by a federal judge this week yet again affirmed the definition of ‘joint employer’ as it relates to franchise businesses, in direct contrast to recent moves by the National Labor Relations Board to scrap the definition and make individually-owned, small-business franchisees one and the same with their corporate franchisors.”
On Tuesday, a judge ruled in Vann v. Massage Envy Franchising LLC that the franchisor was not the employer of the individual businesses they contract out to.
“In a case involving a massage therapist who alleged violations of minimum wage laws, Judge Roger T. Benitez of the U.S. District Court for the Southern District of California ruled on January 6 that Massage Envy, a corporate franchisor, was not the employer of therapists in its franchisees’ California stores,” IFA noted.
They added, “Judge Benitez found that although the national company set standards, procedures and rules for local store operators, the individual alleging violations failed to show that Massage Envy was a joint employer with its franchisees.”
“The ruling is the second major judgment in recent months which upheld a decades-old understanding of the meaning of joint employer,” The IFA concluded. “In late August, 2014, the California Supreme Court declined to hold franchisor Domino’s Pizza LLC liable in a sexual harassment case.”
Matt Haller, senior vice president of Media Relations and Public Affairs, told TheDCNF, “It’s pretty clear, again, that the NLRB continues to ignore established law.”
“Clearly, franchisors are not joint employers with their franchisees,” Haller said.
“In today’s ever-increasing digital world, more employers than ever are turning to telecommuting to help reduce overheard and increase morale of employees. Importantly, however, state and federal laws apply equally to employers and employees, regardless of whether they work on-site or remotely. Among the most common issues and missteps which affect employers with telecommuting employees are wage and hour laws and, more specifically, overtime laws.
All non-exempt employees must be paid for all time worked, regardless of whether the work was performed on-site or remotely. Importantly, this rule typically applies regardless of whether the employer authorized the performance of the work or not. If, for instance, an employee works more than 40 hours per week at home, the employer must…”
Originally published by The National Law Review. Full article can be found at http://www.natlawreview.com/article/telecommuting-employees-and-unauthorized-overtime-must-employer-pay